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Vicarious liability and social media - what are the risks to employers?

The prevalence of social media in the workplace continues apace. Employees can often access social media through both employer IT facilities and personal devices. This naturally increases the risk that employees may breach employment policies and/or act unlawfully both in the course of employment and through their actions outside of employment bringing the employer into disrepute. Employers should be aware that amongst other things, they can be held vicariously liable for the actions of employees which constitute bullying, harassment and discrimination through the medium of online networks and social media.

Employers that fail to minimise the risks posed could face fines, prolonged and expensive litigation and loss of reputation.

In the case of Otomewo v Carphone Warehouse Ltd two members of staff posted a status update on the claimant’s facebook page, without his permission or knowledge. The status update read: “finally came out of the closet. I am gay and proud.” It was posted in the course of employment, the employees’ actions took place during working hours and it involved dealings between staff and a manager – therefore the employer was found vicariously liable for the conduct which amounted to harassment on the grounds of sexual orientation.

Employers can be held vicariously liable for the actions of employees on social networking sites if they occur “in the course of employment”, however, employers should not disregard employee conduct which takes place outside of the workplace. Conduct which is linked to or damaging to the employer, has an impact on the employee’s ability to do his job or causes offence to other employees requires action. Employers can be held vicariously liable for online harassment committed by an employee if the recipient is another employee, even if the online comments are posted out of working hours. Employers should therefore take steps to protect themselves and deal with any allegations of online harassment/bullying in the same way as they would deal with allegations of harassment/bullying in the workplace, whilst being careful not to infringe an employee’s rights to respect for his/her private life.

In the case of Teggart v TeleTech UK Ltd the employer dismissed an employee for posting offensive comments about a colleague on his Facebook page. The tribunal found that when the employee posted the comments on Facebook they became public and therefore he could not rely on his right to respect for his private life or the fact that the comments were posted outside of work. His comments constituted harassment and therefore the employment tribunal dismissed his claim for unfair dismissal.

In Gosden v Lifeline Project Ltd an employment tribunal upheld the dismissal of an employee who expressed sexist and racist views in a private email sent from his home computer to that of a friend. His friend worked for one of his employer’s major clients. The tribunal found that the nature of the email that the Claimant forwarded meant that he had no reasonable expectation that it would be kept private and that the content was incompatible with the work carried out by the employer. Therefore it was reasonable to dismiss the employee for this conduct.

How to protect your business:

Draft and distribute well-conceived social media policies making it clear what employees can and cannot do both within and outside the workplace. The policy should make it clear what conduct is and is not acceptable and that disciplinary action may be taken in the event of a breach. Ensure you review and update the policy periodically.

Provide managers with documented training on your social media policy. Managers should in turn train and educate employees and ensure that employees acknowledge that they understand the training, the rules and the consequences.

Monitor employee use of social media and enforce the social media policy (please note that there must be a term in your employee’s employment contract allowing you to do so).

Have an emergency plan in place to deal with inappropriate social media postings.

These steps will help employers to rely on the “reasonable steps” defence when defending discrimination and harassment claims arising in the context of the use of social media.